Kenneth Broda-Bahm, Ph.D., Senior Litigation Consultant, Persuasion Strategies

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Litigation consultant Kenneth Broda-Bahm is a storyteller. He uses his Ph.D. in Speech Communication and his years of teaching and consulting to construct a theme, central character, plot, and subplots within each case he works on to craft a persuasive message for the judge or jury.

Attorneys, he says, are often so bogged down in the case that they fail to see the central theme of their argument. It's crucial, he says, for litigation consultants to help them sum up case strategy in a sentence or two and then help them consistently get a message out to jurors throughout trial with carefully crafted questions.

And litigation consultants rarely rely on glances and gut instincts to size-up a case, he says. It's a far more scientific process.

"I think this notion that you can look at somebody and size them up - well, I think that that comes from not having enough information and so wanting to make some sort of conclusion," Broda-Bahm told LawCrossing about helping attorneys choose jurors. "You learn the most from people's attitudes. Non-verbal communication does matter to some extent. And their experiences and occupations also matter. But nothing matters more than the intellectual commitments that they've made, the beliefs that they've formed."

When advising on jury selection, for example, Broda-Bahm advises attorneys on what questions to ask that allow the jurors to reveal their true to attitudes on an issue.

"So we're not really in court watching to see if somebody is crossing their left hand over their right and vice versa. We are there giving advice on what the best questions are to ask and keeping track of the answers, and we're building an image of that person and comparing it to a profile of what we don't want. It's not so much the horse whisperer intuition."

Broda-Bahm, 41, works for Persuasion Strategies, a unique in-house consulting firm with Holland & Hart in Colorado. Persuasion Strategies provides advocacy training and litigation consultants to attorneys within Holland & Hart and to other firms nationwide.

People become litigation consultants from many fields, like psychology, law, and forensics. Broda-Bahm was an associate professor of communication studies with Towson University in Maryland and a part-time litigation consultant for eight years before joining Persuasion Strategies full-time just over a year ago.

He says the relatively young field of litigation consulting is growing. The American Society of Trial Consultants has been around for 23 years.

"There is still a wide diversity of backgrounds and expertise that lead people to this profession," he said.

Whatever your background, to be a good litigation consultant, Broda-Bahm believes you need three things: first, a good sense of message and audience and outstanding communication skills; a background in social science; and lastly, an understanding of the constraints within which lawyers operate.

"You don't need to understand the law at the level that the attorneys do. That's their job," he says. "But it is important to know that there are rules of evidence and that they need to work within them and not just come up with anything they think might persuade the jury."

Social science figures prominently in Broda-Bahm's career, through surveys, mock trials, and case studies. He puts emphasis on testing cases through either focus groups or mock trial, typically with at least three separate mock juries hearing the case.

While most people think of juries when they think of litigation consultants, Persuasion Strategies also helps with cases before judges to construct stories and themes for attorneys.

"It's become more well known that jurors understand - and really even judges too - understand complex events and charges through stories," he said. "Whether there's a story or not they will impose some kind of narrative sequence on it. But it's not just creating a story, but having the right story, a story that works for you."

Broda-Bahm says it's important to decide where the story begins and ends.

"If it's a story about an automotive defect, does the story begin at the crash or does the story begin when the car was made? Or does the story begin even earlier when the car was designed?" he says. "And who is the main character? Is it the driver? Is it the designer? Is it the manufacturer? The main character might even be something inanimate like the schedule, the timeline that drove all of this."

By repeating a central theme throughout the trial, jurors may be more easily persuaded by your argument, he says. In one case, for example, his client was representing a businessperson who had been pushed out of his company by two other partners. The theme was two decide to go it alone, making the third party a victim left in the dark. The attorney hammered that theme throughout trial - and it worked.

Broda-Bahm's cases vary widely. He has provided research and advice on a variety of plaintiff and defense cases concerning personal injury, malpractice, contracts, product liability, and capital defense. He is also an expert in evaluating the results of venire surveys and conducting post-trial juror interviews. Sometimes if a case is being appealed, he consults jurors from the first trial to ascertain what went wrong.

His teaching skills also come into play via conducting communications training courses for attorneys to improve their communication skills.

Trial lawyers are obviously already great communicators, but Broda-Bahm says there is always room for improvement and that the best always want to get better.

"It's not a matter of saying, 'Look at your audience. Smile.' Those sorts of things the attorney does know," he says. "There is always some area where you can gain more insight into the audience and you can benefit from the research and you can benefit from our experience of constantly working with audiences and juries and other decision makers."

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